IMHO, if we hope to more confidently explore the endlessly contested
concepts of liberty and self-rule, we need to seriously contemplate the
very first word of the Constitution: "We." Given what we know about
public knowledge, opinions and attitudes, how exactly are We presently
constituted? What is it on which we have nearly unanimous agreement?
Dan Hoffman
Malla Pollack wrote:
Malla Pollack understands the below history of the list serv discussion and
apologizes if her post was not clear. My question is what doctrine (if
any) you propose to make this value a reality. Of course, you could
disclaim any active interest in changing reality., but I feel at least some
duty towards reality and fear creating lines of thought which can be misused
to make the perfect the enemy of the good. You could decide that in reality
the value of self rule should be "under enforced" as per Cass Sunstein
because courts are incompetent to enforce it.
Or you could try and figure out how (if at all) institutions can be used
to try and enforce the aspiration toward e.g. self-rule. For example, I am
considering writing an article proposing new cannons for statutory or
constitutional interpretation. Would"prioritize self rule" be such a
cannon? But if so, how should/would/could courts use that cannon? Do you
prefer using educational rhetoric to influence the public (including the law
students you train) to recognize the importance of self-rule and hope they
will internalize the value?
Malla Pollack
Visiting, Univ. of Oregon, Law
541-346-1599
[EMAIL PROTECTED]
----- Original Message -----
From: "msellers" <[EMAIL PROTECTED]>
To: <[EMAIL PROTECTED]>
Sent: Monday, July 28, 2003 8:06 PM
Subject: self-rule and liberty as fundamental constitutional values
Bobby Lipkin has raised the question of precedence among underlying
constitutional values and proposed "self-rule" as the most fundamental
constitutional idea in our system, both as it is and as it ought to be.
I responded by proposing "liberty" as a more fundamental (and
substantively
more important) value in American constitutional law.
These questions of precedence are important, and worthy of discussion on
this list, because they illuminate how the constitution ought to be
interpreted. If current doctrine has strayed from the pursuit of liberty,
as
understood by the framers (including the authors of the Fourteenth
Amendment),
then it is in need of correction, and ought to be criticized by professors
of
law.
Malla Pollack has objected that contemporary constitutional
jurisprudence
tolerates corruption in the form of special exceptions to general rules of
law. The fact that the framers (quite rightly)understood "liberty" to
require
equal citizenship under law gives those who disapprove of such corruption
a
basis for objecting to discriminatory legislation (and for criticizing
judges
who tolerate it.)
Tim Sellers
>===== Original Message From Discussion list for con law
professors <[EMAIL PROTECTED]> =====
I certainly agree with Tim's general sentiments, but current accepted
doctrine simply does not follow this concept. The Federalist Papers
(among
many other sources) said that the main institutional constraint that
prevented rulers from self-dealing was the rule of law because any
statute
passed would also curtail the legislators. However, Congress routinely
passes statutes limiting e.g. job discrimination that do not cover
Congress'
own hiring practices. The Court usually (not always, remember the
burning
cross case) allows Congress to legislate for part of a problem.
Furthermore, last time I looked (about a year ago) no Supreme Court
case
had ever relied on the Preamble (has been mentioned a few times) as a
separate limit on federal government power.
So theory is nice, but how should/would/could this 18th century
concept
of self-rule be enforced?
Malla Pollack
Visiting, Univ. of Oregon, Law
541-346-1599
[EMAIL PROTECTED]
----- Original Message -----
From: "msellers" <[EMAIL PROTECTED]>
To: <[EMAIL PROTECTED]>
Sent: Sunday, July 27, 2003 8:41 PM
Subject: Re: self-rule and liberty
Defining constitutional terms can be very helpful in working out which
values
are more fundamental, and therefore "underly" others in constitutional
discourse. "Self-rule" is an important idea, that deserves careful
examination.
The preamble to the U.S. Constitution lists securing the blessings of
liberty
as one fundamental purpose of the United States. This strikes me as a
better
way of expressing the values hinted at by "self-rule".
Liberty signified (for the framers) the absence of arbitrary rule.
Free
citizens are ruled by law, not by other persons. But neither are they
ruled
entirely by themselves. "Self-rule" implies an absence of
constraint --
much
like the "license" of the framers -- the ability to do what one wants,
without
external limitations. Liberty, by contrast, requires setting the right
limits
on all citizens, to prevent the exploitation of some by others.
Popular sovereignty is necessary, because it prevents domination.
"Self-rule", inotherwords, in the form of representative democracy, is
justified by its utility in preventing exploitation, by setting the
right
limits on what some citizens may do to others, or on the power of
public
officials. It is of great importance in the service of liberty, but as
a
secondary value.
Outvoted minorities can still be free, despite the limits set on their
self-rule, provided they are overruled for the common good, to prevent
injustices to others.
Tim Sellers
===== Original Message From Discussion list for con law professors
<[EMAIL PROTECTED]> =====
The question of explaining "the sense in which overridden
minorities
still enjoy" freedom is endemic to any theory of
democracy/republicanism/liberty or even the "absence of internal
domination."
Whenever less than a
unanimous vote is concerned, how can the losers be described as
engaging
in
self-rule,
as being free, or as living in the absence of internal domination?
And,
of
course, consent theory generally addresses this question. John Locke
raised
this issue without ever mentioning "self-rule," I think. The problem
of
explaining the role of political minorities in either democracies or
republics is
fundamental, but it is hardly a problem only for those of us who
embrace
self-rule
as the concept underlying democracy and republicanism.
Incidentally, Habermas, Michelman, and Tushnet (Tushnet most
recently
in a symposium on democracy and judicial review in Law and Philosophy)
among
others have raised the question of minority status in democracies.
Tim
is
right in emphasizing its critical importance to any theory of
self-rule
(whoops,
there I go again).
Bobby Lipkin
Widener University School of Law
Delaware
|
